Grayned v.

City of Rockford

No. 70-5106
SUPREME COURT OF THE UNITED STATES

408 U.S. 104

Argued January 19, 1972

Decided June 26, 1972

Syllabus
1. Antipicketing ordinance, virtually identical with one invalidated as violative of equal protection in
Police Department of Chicago v. Mosley, ante, p. 92, is likewise invalid. P. 107.

2. Antinoise ordinance prohibiting a person while on grounds adjacent to a building in which a school
is in session from willfully making a noise or diversion that disturbs or tends to disturb the peace or
good order of the school session is not unconstitutionally vague or overbroad. The ordinance is not
vague since, with fair warning, it prohibits only actual or imminent, and willful, interference with
normal school activity, and is not a broad invitation to discriminatory enforcement. Cox v. Louisiana,
379 U.S. 536; Coates v. Cincinnati, 402 U.S. 611, distinguished. The ordinance is not overbroad as
unduly interfering with First Amendment rights since expressive activity is prohibited only if it
"materially disrupts classwork." Tinker v. Des Moines School District, 393 U.S. 503, 513. Pp. 107-121.

46 Ill. 2d 492, 263 N. E. 2d 866, affirmed in part and reversed in part.

JUDGES: Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan,
Stewart, White, Powell, and Rehnquist, JJ., joined. Blackmun, J., filed a statement joining in the
judgment and in Part I of the Court's opinion and concurring in the result as to Part II of the opinion,
post, p. 121. Douglas, J., filed an opinion dissenting in part and joining in Part I of the Court's opinion,
post, p. 121. [105]

MR. JUSTICE MARSHALL delivered the opinion of the Court.

Appellant Richard Grayned was convicted for his part in a demonstration in front of West Senior High
School in Rockford, Illinois. Negro students at the school had first presented their grievances to school
administrators. When the principal took no action on crucial complaints, a more public demonstration
of protest was planned. On April 25, 1969, approximately 200 people--students, their family members,
and friends--gathered next to the school grounds. Appellant, whose brother and twin sisters were
attending the school, was part of this group. The demonstrators marched around on a sidewalk about
100 feet from the school building, which was set back from the street. Many carried signs which
summarized the grievances: "Black cheerleaders to cheer too"; "Black history with black teachers";
"Equal rights, Negro counselors." Others, without placards, made the "power to the people" sign with
their upraised and clenched fists.

In other respects, the evidence at appellant's trial was sharply contradictory. Government witnesses
reported that the demonstrators repeatedly cheered, chanted, baited policemen, and made other noise
that was audible in the school; that hundreds of students were distracted from their school activities and
lined the classroom windows to watch the demonstration; that some demonstrators successfully yelled
to their friends to leave the school building and join the demonstration; that uncontrolled latenesses
after period changes in the school were far greater than usual, with late students admitting that they had
been watching the demonstration; and that, in general, orderly school procedure was disrupted. Defense
witnesses claimed that the demonstrators were at all times quiet and orderly; that they did not seek to
violate the law, but only to "make [106] a point"; that the only noise was made by policemen using
loudspeakers; that almost no students were noticeable at the schoolhouse windows; and that orderly
school procedure was not disrupted.

After warning the demonstrators, the police arrested 40 of them, including appellant. [note 1] For
participating in the demonstration, Grayned was tried and convicted of violating two Rockford
ordinances, hereinafter referred to as the "antipicketing" ordinance and the "antinoise" ordinance. A $25
fine was imposed for each violation. Since Grayned challenged the constitutionality of each ordinance,
he appealed directly to the Supreme Court of Illinois. Ill. Sup. Ct. Rule 302. He claimed that the
ordinances were invalid on their face, but did not urge that, as applied to him, the ordinances had
punished constitutionally protected activity. The Supreme Court of Illinois held that both ordinances
were constitutional on their face. 46 Ill. 2d 492, 263 N. E. 2d 866 (1970). We noted probable
jurisdiction, 404 U. S. 820 (1971). We conclude that the antipicketing ordinance is unconstitutional, but
affirm the court below with respect to the antinoise ordinance. [107]

I
At the time of appellant's arrest and conviction, Rockford's antipicketing ordinance provided that

"A person commits disorderly conduct when he knowingly:

....
"(i) Pickets or demonstrates on a public way within 150 feet of any primary or secondary school
building while the school is in session and one-half hour before the school is in session and one-half
hour after the school session has been concluded, provided that this subsection does not prohibit the
peaceful picketing of any school involved in a labor dispute . . . ." Code of Ordinances, c. 28, 18.1 (i).

This ordinance is identical to the Chicago disorderly conduct ordinance we have today considered in
Police Department of Chicago v. Mosley, ante, p. 92. For the reasons given in Mosley, we agree with
dissenting Justice Schaefer below, and hold that 18.1 (i) violates the Equal Protection Clause of the
Fourteenth Amendment. Appellant's conviction under this invalid ordinance must be reversed. [note 2]

II
The antinoise ordinance reads, in pertinent part, as follows:

"No person, while on public or private grounds adjacent to any building in which a school or any [108]
class thereof is in session, shall willfully make or assist in the making of any noise or diversion which
disturbs or tends to disturb the peace or good order of such school session or class thereof. . . ." Code of
Ordinances, c. 28, 19.2 (a).
Appellant claims that, on its face, this ordinance is both vague and overbroad, and therefore
unconstitutional. We conclude, however, that the ordinance suffers from neither of these related
infirmities.

A. Vagueness
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not
clearly defined. Vague laws offend several important values. First, because we assume that man is free
to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague
laws may trap the innocent by not providing fair warning. [note 3] Second, if arbitrary and
discriminatory enforcement is to be prevented, laws must provide explicit standards for those who
apply them. [note 4] A vague law impermissibly delegates [109] basic policy matters to policemen,
judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of
arbitrary and discriminatory application. [note 5] Third, but related, where a vague statute "abut[s]
upon sensitive areas of basic First Amendment freedoms," [note 6] it "operates to inhibit the exercise of
[those] freedoms." [note 7] Uncertain meanings inevitably lead citizens to "'steer far wider of the
unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked." [note 8]

Although the question is close, we conclude that the antinoise ordinance is not impermissibly vague.
The court below rejected appellant's arguments "that proscribed conduct was not sufficiently specified
and that police were given too broad a discretion in determining whether conduct was proscribed." 46
Ill. 2d, at 494, 263 N. E. 2d, at 867. Although it referred to other, similar statutes it had recently
construed and upheld, the court [110] below did not elaborate on the meaning of the antinoise
ordinance. [note 9] In this situation, as Mr. Justice Frankfurter put it, we must "extrapolate its allowable
meaning." [note 10] Here, we are "relegated . . . to the words of the ordinance itself," [note 11] to the
interpretations the court below has given to analogous statutes, [note 12] and, perhaps to some degree,
to the interpretation of the statute given by those charged with enforcing it. [note 13] "Extrapolation,"
of course, is a delicate task, for it is not within our power to construe and narrow state laws. [note 14]

With that warning, we find no unconstitutional vagueness in the antinoise ordinance. Condemned to the
use of words, we can never expect mathematical certainty from our language. [note 15] The words of
the Rockford ordinance are marked by "flexibility and reasonable breadth, rather than meticulous
specificity," Esteban v. Central Missouri State College, 415 F.2d 1077, 1088 (CA8 1969) (Blackmun,
J.), cert. denied, 398 U.S. 965 (1970), but we think it is clear what the ordinance as a whole prohibits.
Designed, according to its preamble, "for the protection of Schools," the ordinance forbids deliberately
[111] noisy or diversionary [note 16] activity that disrupts or is about to disrupt normal school
activities. It forbids this willful activity at fixed times--when school is in session--and at a sufficiently
fixed place--"adjacent" to the school. [note 17] Were we left with just the words of the ordinance, we
might be troubled by the imprecision of the phrase "tends to disturb." [note 18] However, in Chicago v.
Meyer, 44 Ill. 2d 1, 4, 253 N. E. 2d 400, 402 (1969), and Chicago v. Gregory, 39 Ill. 2d 47, 233 N. E.
2d 422 (1968), reversed on other grounds, 394 U.S. 111 (1969), the Supreme Court of Illinois
construed a Chicago ordinance prohibiting, inter alia, a "diversion tending to disturb the peace," and
held that it permitted conviction only where there was "imminent threat of violence." (Emphasis
supplied.) See Gregory v. Chicago, 394 U.S. 111, 116-117, 121-122 (1969) (Black, J., concurring).
[note 19] Since Meyer was specifically cited in the opinion below, and it in turn drew heavily on
Gregory, we think it proper to conclude that the Supreme Court of Illinois would interpret the Rockford
ordinance to prohibit only actual [112] or imminent interference with the "peace or good order" of the
school. [note 20]

Although the prohibited quantum of disturbance is not specified in the ordinance, it is apparent from
the statute's announced purpose that the measure is whether normal school activity has been or is about
to be disrupted. We do not have here a vague, general "breach of the peace" ordinance, but a statute
written specifically for the school context, where the prohibited disturbances are easily measured by
their impact on the normal activities of the school. Given this "particular context," the ordinance gives
"fair notice to those to whom [it] is directed." [note 21] Although the Rockford ordinance may not be as
precise as the statute we upheld in Cameron v. Johnson, 390 U.S. 611 (1968)--which prohibited
picketing "in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and
from" any courthouse--we think that, as in Cameron, the ordinance here clearly "delineates its reach in
words of common understanding." Id., at 616. [113]

Cox v. Louisiana, 379 U.S. 536 (1965), and Coates v. Cincinnati, 402 U.S. 611 (1971), on which
appellant particularly relies, presented completely different situations. In Cox, a general breach of the
peace ordinance had been construed by state courts to mean "to agitate, to arouse from a state of
repose, to molest, to interrupt, to hinder, to disquiet." The Court correctly concluded that, as construed,
the ordinance permitted persons to be punished for merely expressing unpopular views. [note 22] In
Coates, the ordinance punished the sidewalk assembly of three or more persons who "conduct
themselves in a manner annoying to persons passing by . . ." We held, in part, that the ordinance was
impermissibly vague because enforcement depended on the completely subjective standard of
"annoyance."

In contrast, Rockford's antinoise ordinance does not permit punishment for the expression of an
unpopular point of view, and it contains no broad invitation to subjective or discriminatory
enforcement. Rockford does not claim the broad power to punish all "noises" and "diversions." [note
23] The vagueness of these terms, by themselves, is dispelled by the ordinance's requirements that (1)
the "noise or diversion" be actually incompatible with normal school activity; (2) there be a
demonstrated causality between the disruption that occurs and the "noise or diversion"; and (3) the acts
be [114] "willfully" done. [note 24] "Undesirables " or their "annoying" conduct may not be punished.
The ordinance does not permit people to "stand on a public sidewalk . . . only at the whim of any police
officer." [note 25] Rather, there must be demonstrated interference with school activities. As always,
enforcement requires the exercise of some degree of police judgment, but, as confined, that degree of
judgment here is permissible. The Rockford City Council has made the basic policy choices, and has
given fair warning as to what is prohibited. "The ordinance defines boundaries sufficiently distinct" for
citizens, policemen, juries, and appellate judges. [note 26] It is not impermissibly vague.

B. Overbreadth
A clear and precise enactment may nevertheless be "overbroad" if in its reach it prohibits
constitutionally protected conduct. [note 27] Although appellant does not claim that, as applied to him,
the antinoise ordinance has punished protected expressive activity, he claims that the ordinance is
overbroad on its face. Because overbroad laws, like vague ones, deter privileged activity, our cases
firmly establish appellant's standing to raise an overbreadth challenge. [note 28] The crucial question,
then, is [115] whether the ordinance sweeps within its prohibitions what may not be punished under the
First and Fourteenth Amendments. Specifically, appellant contends that the Rockford ordinance unduly
interferes with First and Fourteenth Amendment rights to picket on a public sidewalk near a school. We
disagree.

"In considering the right of a municipality to control the use of public streets for the expression of
religious [or political] views, we start with the words of Mr. Justice Roberts that 'Wherever the title of
streets and parks may rest, they have immemorially been held in trust for the use of the public and, time
out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions.' Hague v. CIO, 307 U.S. 496, 515 (1939)." Kunz v. New York, 340 U.S.
290, 293 (1951). See Shuttlesworth v. Birmingham, 394 U.S. 147, 152 (1969). The right to use a public
place for expressive activity may be restricted only for weighty reasons.

Clearly, government has no power to restrict such activity because of its message. [note 29] Our cases
make equally clear, however, that reasonable "time, place and manner" regulations may be necessary to
further significant governmental interests, and are permitted. [note 30] For example, two parades
cannot march on the same street simultaneously, and government may allow only one. Cox v. New
Hampshire, 312 U.S. 569, 576 (1941). A demonstration or parade on a large street during rush hour
[116] might put an intolerable burden on the essential flow of traffic, and for that reason could be
prohibited. Cox v. Louisiana, 379 U.S., at 554. If overamplified loudspeakers assault the citizenry,
government may turn them down. Kovacs v. Cooper, 336 U.S. 77 (1949); Saia v. New York, 334 U.S.
558, 562 (1948). Subject to such reasonable regulation, however, peaceful demonstrations in public
places are protected by the First Amendment. [note 31] Of course, where demonstrations turn violent,
they lose their protected quality as expression under the First Amendment. [note 32]

The nature of a place, "the pattern of its normal activities, dictate the kinds of regulations of time,
place, and manner that are reasonable." [note 33] Although a silent vigil may not unduly interfere with
a public library, Brown v. Louisiana, 383 U.S. 131 (1966), making a speech in the reading room almost
certainly would. That same speech should be perfectly appropriate in a park. The crucial question is
whether the manner of expression is basically incompatible with the normal activity of a particular
place at a particular time. Our cases make clear that in assessing the reasonableness of a regulation, we
must weigh heavily the fact that communication is involved; [note 34] the regulation must be narrowly
[117] tailored to further the State's legitimate interest. [note 35] Access to the "streets, sidewalks, parks,
and other similar public places . . . for the purpose of exercising [First Amendment rights] cannot
constitutionally be denied broadly . . . ." [note 36] Free expression "must not, in the guise of regulation,
be abridged or denied." [note 37]

In light of these general principles, we do not think that Rockford's ordinance is an unconstitutional
regulation of activity around a school. Our touchstone is Tinker v. Des Moines School District, 393
U.S. 503 (1969), in which we considered the question of how to accommodate First Amendment rights
with the "special characteristics of the school environment." Id., at 506. Tinker held that the Des
Moines School District could not punish students for wearing black armbands to school in protest of
the Vietnam war. Recognizing that "'wide exposure to . . . robust exchange of ideas'" is an "important
part of the educational process" and should be nurtured, id., at 512, we concluded that free expression
could not be barred from the scho olcampus. We made clear that "undifferentiated fear or apprehension
of disturbance is not enough to overcome the right to freedom of expression," id., at 508, [note 38] and
that particular expressive activity could not be prohibited because of a "mere desire to avoid the
discomfort and unpleasantness that always accompany an unpopular viewpoint," id., at 509. But we
nowhere suggested that students, teachers, or anyone else has an absolute constitutional right to use
[118] all parts of a school building or its immediate environs for his unlimited expressive purposes.
Expressive activity could certainly be restricted, but only if the forbidden conduct "materially disrupts
classwork or involves substantial disorder or invasion of the rights of others." Id., at 513. The wearing
of armbands was protected in Tinker because the students "neither interrupted school activities nor
sought to intrude in the school affairs or the lives of others. They caused discussion outside of the
classrooms, but no interference with work and no disorder." Id., at 514. Compare Burnside v. Byars,
363 F.2d 744 (CA5 1966), and Butts v. Dallas Ind. School District, 436 F.2d 728 (CA5 1971), with
Blackwell v. Issaquena County Board of Education, 363 F.2d 749 (CA5 1966).

Just as Tinker made clear that school property may not be declared off limits for expressive activity by
students, we think it clear that the public sidewalk adjacent to school grounds may not be declared off
limits for expressive activity by members of the public. But in each case, expressive activity may be
prohibited if it "materially disrupts classwork or involves substantial disorder or invasion of the rights
of others." Tinker v. Des Moines School District, 393 U.S., at 513. [note 39]

We would be ignoring reality if we did not recognize that the public schools in a community are
important institutions, and are often the focus of significant grievances. [note 40] Without interfering
with normal school activities, [119] daytime picketing and handbilling on public grounds near a school
can effectively publicize those grievances to pedestrians, school visitors, and deliverymen, as well as to
teachers, administrators, and students. Some picketing to that end will be quiet and peaceful, and will in
no way disturb the normal functioning of the school. For example, it would be highly unusual if the
classic expressive gesture of the solitary picket disrupts anything related to the school, at least on a
public sidewalk open to pedestrians. [note 41] On the other hand, schools could hardly tolerate
boisterous demonstrators who drown out classroom conversation, make studying impossible, block
entrances, or incite children to leave the schoolhouse. [note 42]

Rockford's antinoise ordinance goes no further than Tinker says a municipality may go to prevent
interference with its schools. It is narrowly tailored to further Rockford's compelling interest in having
an undisrupted school session conducive to the students' learning, and does not unnecessarily interfere
with First Amendment rights. Far from having an impermissibly broad prophylactic ordinance, [note
43] Rockford punishes only conduct which disrupts or is about to disrupt normal school activities. That
decision is made, as it should be, on an individualized basis, given the particular fact situation. Peaceful
picketing which does not interfere with the ordinary functioning of the school is permitted. [120] And
the ordinance gives no license to punish anyone because of what he is saying. [note 44]

We recognize that the ordinance prohibits some picketing that is neither violent nor physically
obstructive. Noisy demonstrations that disrupt or are incompatible with normal school activities are
obviously within the ordinance's reach. Such expressive conduct may be constitutionally protected at
other places or other times, cf. Edwards v. South Carolina, 372 U.S. 229 (1963); Cox v. Louisiana, 379
U.S. 536 (1965), but next to a school, while classes are in session, it may be prohibited. [note 45] The
antinoise ordinance imposes no such restriction on expressive activity before or after the school
session, while the student/faculty "audience" enters and leaves the school.

In Cox v. Louisiana, 379 U.S. 559 (1965), this Court indicated that, because of the special nature of the
place, [note 46] persons could be constitutionally prohibited from picketing "in or near" a courthouse
"with the intent of interfering with, obstructing, or impeding the administration of justice." Likewise, in
Cameron v. Johnson, 390 U.S. 611 (1968), we upheld a statute prohibiting [121] picketing "in such a
manner as to obstruct or unreasonably interfere with free ingress or egress to and from any . . .
county . . . courthouses." [note 47] As in those two cases, Rockford's modest restriction on some
peaceful picketing represents a considered and specific legislative judgment that some kinds of
expressive activity should be restricted at a particular time and place, here in order to protect the
schools. [note 48] Such a reasonable regulation is not inconsistent with the First and Fourteenth
Amendments. [note 49] The antinoise ordinance is not invalid on its face. [note 50]

The judgment is

Affirmed in part and reversed in part.

MR. JUSTICE BLACKMUN joins in the judgment and in Part I of the opinion of the Court. He
concurs in the result as to Part II of the opinion.

MR. JUSTICE DOUGLAS, dissenting in part.

While I join Part I of the Court's opinion, I would also reverse the appellant's conviction under the
antinoise ordinance. [122]
The municipal ordinance on which this case turns is c. 28, 19.2 (a) which provides in relevant part:

"That no person, while on public or private grounds adjacent to any building in which a school or any
class thereof is in session, shall willfully make or assist in the making of any noise or diversion which
disturbs or tends to disturb the peace or good order of such school session or class thereof."
Appellant was one of 200 people picketing a school and carrying signs promoting a black
cause--"Black cheerleaders to cheer too," "Black history with black teachers," "We want our rights,"
and the like. Appellant, however, did not himself carry a picket sign. There was no evidence that he
yelled or made any noise whatsoever. Indeed, the evidence reveals that appellant simply marched
quietly and on one occasion raised his arm in the "power to the people" salute.

The pickets were mostly students; but they included former students, parents of students, and
concerned citizens. They had made proposals to the school board on their demands and were turned
down. Hence the picketing. The picketing was mostly by black students who were counseled and
advised by a faculty member of the school. The school contained 1,800 students. Those counseling the
students advised they must be quiet, walk hand in hand, no whispering, no talking.

Twenty-five policemen were stationed nearby. There was noise but most of it was produced by the
police who used loudspeakers to explain the local ordinance and to announce that arrests might be
made. The picketing did not stop, and some 40 demonstrators, including appellant, were arrested.

The picketing lasted 20 to 30 minutes and some students went to the windows of the classrooms to
observe it. It is not clear how many there were. The picketing [123] was, however, orderly or, as one
officer testified, "very orderly." There was no violence. And appellant made no noise whatever.

What Mr. Justice Roberts said in Hague v. CIO, 307 U.S. 496, 515-516, has never been questioned:

"Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use
of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions. Such use of the streets and public places has, from
ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of
a citizen of the United States to use the streets and parks for communication of views on national
questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in
subordination to the general comfort and convenience, and in consonance with peace and good order;
but it must not, in the guise of regulation, be abridged or denied."
We held in Cox v. Louisiana, 379 U.S. 536, 544-545, that a State could not infringe the right of free
speech and free assembly by convicting demonsrators under a "disturbing the peace" ordinance where
all that the students in that case did was to protest segregation and discrimination against blacks by
peaceably assembling and marching to the courthouse where they sang, prayed, and listened to a
speech, but where there was no violence, no rioting, no boisterous conduct.

The school where the present picketing occurred was the center of a racial conflict. Most of the pickets
were indeed students in the school. The dispute doubtless disturbed the school; and the blaring of the
loudspeakers of the police was certainly a "noise or diversion" in the [124] meaning of the ordinance.
But there was no evidence that appellant was noisy or boisterous or rowdy. He walked quietly and in an
orderly manner. As I read this record, the disruptive force loosed at this school was an issue dealing
with race--an issue that is preeminently one for solution by First Amendment means. [note *] That is all
that was done here; and the entire picketing, including appellant's part in it, was done in the best First
Amendment tradition.